VI. Conclusion
The above descriptions and discussions do not aim to make evaluation or devaluation of indigenous law, individually of its various parts or wholly of its concept, but to make known its wide existence, interrelated to and interacting with received law.
Its evaluation or devaluation should be done in a later stage of study on reasonable methodological considerations. Without them, unconscious ethnocentric ideas would creep in, whether of Western countries (Trubek, 1972: 16) or non-Western countries, called “negative ethnocentrism” (Abel, 1974: 228). For convincing evaluation or devaluation, further empirical investigation may be required to identify more facts and reclassify known items, including those which may be found in the future.67 Nonetheless, the above descriptions and discussions seem to present some concluding suggestions about the characteristics of the whole structure of law in contemporary Japanese society.First of all, there is no system of official law other than state law. Especially remarkable is the absence of official religious law as in Christian, Islamic, Hindu, Buddhist and Judaic countries. Various religious orders, including Shinto ones, have truly had their own canon laws, but these laws have never enjoyed an official position authorized by the state law as an independent system. On the contrary they have, in general, been included in the state law, whether in a subsystem as the past State Shinto or in the contemporary form of free religious institutions. Underlying those facts is the Japanese vague conception of religion, which is clearly seen by the conception of kami and Shinto. The non-existence of official laws other than state law may be viewed as a result of an overwhelming prevalence of the state law, or strong influences of unofficial laws separately functioning outside of the realm of the state law.
The author tends to accept the latter view.The reason is supplied by a second characteristic: a wide prevalence of indigenous unofficial law. It exists in different relations to the official state law; adopted in the latter either in whole or in part, or rejected formally by, but permeating substantially with, the latter, or else functioning outside of the realm of the official law. It is still alive by flexibly adapting itself to changing circumstances, and is supported by indigenous legal postulates. The amoeba-like way of thinking, the most general of the postulates, must function even to admit some deviation from established criteria owing to its relativistic capacity as seen by wide administrative discretion and the existence of formally unlawful deviant groups.
Thirdly, to specifically emphasize a point mentioned in the above second characteristic, indigenous law is not confined to any one level of the whole structure of law. Many indigenous laws spread over both levels of official and unofficial law supported by legal postulates, thus over a total of three levels. Some others rejected by official law may be supported by the other two levels. The common idea, “state law received, and customary law indigenous,” is found to be incorrect; what exists is the interrelation and interaction between received and indigenous law.
A fourth characteristic is that indigenous law is never stable, but changes dynamically to adapt itself to given circumstances, whether affected by received law or as the result of its own development. Japanese indigenous law received Chinese law in earlier ages but achieved its own development over a long time, up to the Meiji Restoration. Even after the rushed reception of Western law, it has maintained essential indigenous factors, although one might not want to recognize some as indigenous law. Our problem is not to discern indigeneity completely from reception, but to conceptualize accurately different stages of indigenous transformation in an assimilation process with received law. The favoured dichotomy, “traditional law versus modern law,” is likewise found too simple to observe this process of mutual influence (cf. Chiba, 1980).
Lastly, the above whole system of law is not uni-structured but multi-structured, consisting of different systems; roughly, two systems from legalistic and behavioural points of view. Strictly seen from the legalistic view, unofficial law has to disappear from the front stage of law, together with the postulates behind it; and seen from the behavioural view alone, the concept of law has to lose an essential component. Each observer is free to choose between them. But those who want to identify the law of the people as giving them in reality the criteria for their behaviour cannot depart from the behavioural view, where reconstruction of the concept of law and methodology for it is required in order to include the legalistic concept as well.